Morality in Rule of Law

Jurists have interpreted the law differently from various points of view. It has been referred to in Hindu jurisprudence as Dharma and in the Islamic framework as Hukum. It was called Jus by the Romans and was called Richt and Droit in Germany and France. Law in its most basic, systematic sense, according to Blackstone, implies a rule of conduct and is indiscriminately applicable to all kinds of acts, whether animate or inanimate, reasonable or irrational. The topic of the present article is the relationship between the rule of law and morality. In most countries around the world, the principle of the rule of law is a prevalent feature.

The rule of law is a philosophy that maintains that neither the persons nor the government they elect are above the law. It is a concept of equally applied and implemented law that all persons and organisations are subject to and accountable for. The analysis of the highest good, according to Paton, is morality or moral. The ideals of right and wrong actions and the goodness or evil of human character are concerned with morality. Rule of law is a system that ensures equality before the law for all people. It also guarantees a non-arbitrary system of government, and prohibits the arbitrary use of power in particular. In general, the rule of law means that the formation of laws, their implementation, and the relationships between legal rules are themselves legally regulated, so that no one is above the law, even the highest-ranking official.

The legal restraint on rulers implies that as much as its people are, the government is subject to existing laws. The rule of law contemplates governance by laws and not by the amusement, whims or caprices of the men to whom governance is actually entrusted. While, Morality, on the other hand, just deals with the consciousness of individuals in society as to whether or not a particular action is right or wrong or good or bad.

The criteria for the proper assessment of our interests is generally given by morality. Morality includes rich definitions in Confucian thinking as it relates to personal values , rules for organising interpersonal relationships, ways of running a country, etc.  Ronald Dworkin has argued that political and moral values are unavoidably embedded in both laws and constitutions. The rule is not derived from recognised true moral values in a logical way. Instead, it is set up by governments who agree on public rules formed by a political consensus on right and wrong. There is a near connexion between morality and the rule of law, as the rule of law is complemented by morality. At the same time, a casual bridge between the two can also be considered, since laws are not made up of moral ideals, but are set up and formed by a legal agreement between right and wrong.

And while morality is inherently involved in the formation and alteration of the law, it is never legally binding and has no constitutional validity. When morality prioritises the moral principles and consciences of the subjects of the state, the rule of law prioritises the supremacy of law. For example , a man is under no obligation to assist a beggar or the distressed and without fear of any legal or criminal consequences can neglect his sick and old parents, but morality does not enable a person to do so as it amounted to unwanted behaviour rejected by morals and ethics.

It is a contentious truth that laws have a marginal origin from the values and ethics derived from culture that initially monitored people’s actions, but morality alone may not be the basis in which law is derived. An reasonable statement is that morality as well as the rule of law have both adapted to society ‘s growth. From a moral point of view, what appears right can be contradictory when seen from the point of view of the rule of law.

If a person seeks to feed a person in need by stealing solely for the purpose of feeding the person in need, the act may be morally justified, but the same may not be the case under the rule of law. Since, under the rule of law principle, it is as similar to an individual committing theft with a bona fide motive as an individual committing the same with mala fide intentions. All is treated on the same basis under the Rule of Law, even if it is done with a sincere intention, but no one is above the law. In another case, under prevailing laws, a person committing a killing may be acquitted by the court and the same may be justified by the court, but morally the same does not confer justice to the dear ones of the dead. Morality, therefore, has a minimal role in the rule of law, though it is strongly contradictory.

Law And Morality: Linkage

In the process of structuring the legal system, law and morality act and reply to each other. Morals, by virtue of fairness , equity, good faith and conscience, have provided the basis for the creation of law. In creating the law and its interpretation, there is a place for morality. There is still a lack of legislation that will contradict public morality, yet morals are an integral part of the legislation, so it can be understood. Internal moral cultivation as a sage is the pillar of government, according to the Confucian concept of the Internal Sage and External Ruler. This mixture included moral standards and terms recognised by Chinese people in Confucian works. Initially, there was a lack of differentiation between morality and legislation. Both law and morality were treated as one and the same in ancient India, where most of the laws were derived from morals in the Vedas and Puranas. In Europe, the Greeks invented the theoretical moral basis of law in the name of the doctrine of natural rights. Christian morale during the Middle Ages were considered as the basis of law. But as years passed, in actual practice, variations between the two were found.

With the European reformation, there were claims that law and morality were distinct and separate, and law derived its influence not from morality, but from the state. Morals have their origins from faith or consciences, natural laws had a moral basis in the 17th and 18th centuries, and laws were associated with morals. It was during the 19th century that a remark was made by Jhon Austin stating that law has nothing to do with morality. He then defined law as the sovereign’s order. Further Kelsen argued that only legal norms were the subject-matter of jurisprudence, he had excluded all other considerations which included morals.

Morals and rules were viewed as one and the same in ancient times. While law and morality have many distinctions in the current age, the same ones are not entirely different or distinct. On three grounds, a relationship between morality and law may be established; I) morals as the basis of law II) morals as the measure of positive law III) morals as the end of law. It was Stammler ‘s opinion that jurisprudence relies heavily on moral ideas because law alone requires ethical doctrine for its full realisation. Positive law and just law lead to positive morals and ethics that are rationally based. There is no distinction, and if there is one, it is only the difference in the way in which the desire for justice is portrayed. Whereas H.L.A Hart claims that law and morality have many ties. He was of the opinion that some clear compliance with morality or justice must be demonstrated by a legal system or must rest on a widely diffused belief that there is a moral duty to follow it. In terms of morality, Dean Roscoe Pound presented four phases in the development of law:

  • The first stage is a period of undifferentiated customs of ethics, customs of common action, religion and law. The pre-legal stage in the development of law and law and morality is the same thing, empirical jurists called it. It was the two sides of the same coin,
  • The second phase is that of strict law, codified or crystallised, which is outstripped by morality in time and does not have sufficient power to keep up with development.
  • The third step is that morality is infused into the law and reshaped by morality. Both the principles of equality and natural law are possible growth agencies in that process.
  • The final stage is that of constructive rule-making deliberately, the sophistication of rule, in which morals and morality are for the law-maker and the judge alone is for the law.

Therefore, despite the fact that law and morality have had their disagreements, it would still be misleading to say they have no relation whatsoever. The very definition of law derived from morals from immemorial times implies that morality and ethics are the foundations in which laws exploded. While morality and law can be separated, morality is still an integral part of law.

Different jurists position morality and law on the same footing, when a large number of  them claim that they are separate,. But law and morality are behaving and responding and forming one another. Morals have entered the fabric of the law in the name of justice, equity, good faith and conscience. In making laws, interpreting and exercising judicial discretion, moral considerations play an important role.

The existence of morality in the rule of law is a highly controversial subject when, on the one hand, the law, whose authority is highly spoken of in the rule of law, arises from morality while, on the other hand, the same values are only partially adapted in the course of practise or implementation of the rule of law.

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

If you are interested in participating in the same, do let me know.

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Islamic Law – Sunnah and Quran 3

Islamic Law – Sunnah and Quran 2

Islamic Law – Sunnah and Quran 1

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